In the Matter of the Complaint Against EVELYN TAYLOR and TAYCO MAILS P. O. Box 8010 at Stockton, CA 95208 P.S. Docket No. 7/145; 09/25/80 Cohen, James A. APPEARANCE FOR COMPLAINANT: SandraC. McFeeley, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1100 Norman D. Menegat, Esq. Assistant Regional Counsel Western Region United States Postal Service San Bruno, CA 94099 APPEARANCE FOR RESPONDENT: Evelyn Taylor P. O. Box 8010 Stockton, CA 95208
On July 30, 1980, Chief Administrative Law Judge William A. Duvall issued an Initial Decision holding that with regard to its envelope stuffing program, Respondent is engaged in a scheme for obtaining money through the mail in violation of 39 U.S.C. § 3005. The Initial Decision was received by Respondent on August 8, 1980. A Notice of Right to Appeal advising Respondent that it had fifteen (15) days from the date of receipt of the Initial Decision in which to file an appeal was received by Respondent on August 11, 1980. Under the Notice of Right to Appeal and 39 C.F.R. ??952.24(a) and 952.31, Respondent had until August 25, 1980, to file an appeal. Since no appeal from the Initial Decision had been filed by that date, an order was issued on September 4, 1980, making the Initial Decision the final Postal Service Decision as provided in 39 C.F.R. § 952.24(a). Accompanying the order of September 4, 1980, was Mail Stop Order No. 80-186.
By letter received on September 24, 1980, Respondent advised that on August 25, 1980, it had sent a letter to the Office of Administrative Law Judges. The August 25, 1980, letter was received in the Postal Service on September 2, 1980, but, due to mishandling, was not received by the Recorder of the Judicial Officer Department until September 24, 1980. The envelope in which the August 25, 1980, letter was transmitted bears a postmark of the same date. Accordingly, it appears Respondent's letter was placed in the mail within fifteen (15) days after receipt by Respondent of the Initial Decision and should be considered to be a timely filed appeal. Since Respondent's appeal was timely filed it is appropriate to consider the merits of the appeal.
Respondent's appeal letter of August 25, 1980, states in part: "The Superior Court of San Joaquin County Nov.-75 to March-76 declared the ad which is now being used and was then Legal.
The circular which is now being used states they do have to collect as well as advertise for the envelopes, which was left out of the one in 1975 therefore was fined for that and that only."
Respondent argues that for the reasons stated in the quoted language its advertising and promotional materials do not contain false representations.
The quoted portion of the appeal letter is identical to the language used by Respondent in the Answer to Complaint. The presiding Administrative Law Judge found no support in the record for the statement relating to the action of the Superior Court. A review of the record supports the conclusion of the presiding Administrative Law Judge. In addition, the presiding Administrative Law Judge found that the representations contained in Respondent's advertising (Exs. 1 & 2) are materially false as a matter of fact. This conclusion is supported by the record notwithstanding Respondent's inclusion of the words "collect" and "advertise" in Exhibit 2.
Accordingly, there is no merit to Respondent's appeal and it is, therefore, denied. Since the appeal is without merit, the previously issued Mail Stop Order remains in full force and effect.